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‘Spinal Tap’ Actors File Amended Complaint, Seek Ability to Reclaim Copyrights

Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the four co-creators of the band at the center of the 1984 “mockumentary” film “This is Spinal Tap,” have filed amendments to their ongoing lawsuit filed against Vivendi’s Universal Music Group and Studiocanal for alleged underpayment of music royalties in the film, including adding UMG as a defendant and seeking the right to reclaim their copyrights to the film, its songs and characters.

In October 2016, Shearer’s Century of Progress Productions sued Vivendi’s Universal Music Group and Studiocanal for $125 million for the alleged underpayment of music royalties. The lawsuit said Vivendi reported only $98 in total income from soundtrack music sales between 1989 and 2006, and just $81 in worldwide merchandising income. Guest, and companies belonging to Reiner and McKean, were later added to the complaint.

Vivendi argued that three of the co-creators’ companies, which sought up to $400 million in damages, did not have the legal right to sue. In September, a district court judge Gee agreed, noting that the contracts with the creators’ companies obligated them to “perform services — not receive rights or other benefits,” although she allowed co-creator Christopher Guest’s case to proceed and allowed the other three the option to sue individually. She also concurred with Vivendi that details of the fraud allegations were not up to snuff.

The three are now suing individually, as well as detailing the allegations of fraud by concealment and misrepresentation they claim were conducted by Vivendi, its agent Ron Halpern and others. The co-creators contend there was longstanding and deliberate concealment by Vivendi of material facts regarding the actual gross receipts of the film, soundtrack, music and merchandise sales, plus expenses and the profits owed to them. They claim that Vivendi, through its subsidiary Canal, “has repeatedly refused to deliver numerous years’ accounting statements, contrary to its contractual obligations — in particular, statements relating to years in which substantial exploitation occurred and as a result, revenues were significantly enhanced.” This includes the omission of a $1.6 million payment by MGM to Vivendi in 2004, they claim, which represented a settlement in respect of VHS & DVD revenues originally underreported by MGM, as well as improper expense deductions made in Vivendi’s accounting for print, advertising and publicity expenses of more than $3.3 million and a further $1 million in freight and other costs. The complaint also claims that Vivendi recently charged over $460,000 in interest on production advances for the 33-year-old film, and $165,000 in litigation expenses.

Significantly, the complaint seeks a judgment in the actors’ right to reclaim their copyright to the film and elements of its intellectual property (screenplay, songs, recordings and characters). Vivendi has claimed that the film was created as a work for hire, with the studio essentially the author. This would prevent the actors from exercising their option to reclaim the rights to the film 35 years after its initial release, which is permitted by law.

“The scale and persistence of fraudulent misrepresentation by Vivendi and its agents to us is breathtaking in its audacity,” Shearer said in a statement. “The thinking behind the statutory right to terminate a copyright grant after 35 years was to protect creators from exactly this type of corporate greed and mismanagement.  Absurdly, Vivendi seems determined to allow anyone but the creators to be enriched by our works. It’s emerging that Vivendi has, over decades, utterly failed as guardian of the Spinal Tap brand – a truer case of life imitating our art would be hard to find.”

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